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Gary P Naftalis is co-chairman of Kramer Levin Naftalis & Frankel LLP and one of the nation’s leading trial lawyers and preeminent litigators. For more than 40 years, he has represented individuals and corporations in all phases of complex bet-the-company civil, criminal and regulatory matters. Mr Naftalis formerly served as an assistant US attorney in the Southern District of New York. He received his law degree from Columbia, his MA from Brown, and his AB from Rutgers. He has taught at Columbia and Harvard and co-authored the leading work on the grand jury.

What do you enjoy most about working in the field of business crime defence?

I find it enormously satisfying to be able to help individuals and corporations in times of crisis. In those high-stress situations, everything that is important is at stake – their freedom, reputation and future. Trying such high-stakes cases is an intellectual and strategic challenge and involves relating to and persuading people, be they jurors or judges, that the charges are unjust and unfounded.

And it is even more satisfying to be able to persuade regulators and prosecutive authorities that charges should not be brought, thereby sparing your client the agony and notoriety of a highly publicised charge and trial. These quiet victories are often more meaningful to the client than winning at a public trial.

What effect is technology having on the work of investigations lawyers?

Technology has complicated the work of a business crime defence lawyer. There is so much more data now available that needs to be analysed and studied. In the old days, everything was on paper and the only available data was the records and communications that had been retained and not discarded in the normal course.

Now electronic communications – emails and text messages – have exponentially increased the universe of communications. People dash off emails and texts often without the care and editing that goes into sending a written memo or letter. And unlike written drafts and letters that can be discarded, electronic communications never go away. Deleted emails and texts can be retrieved from hard drives. The evolution of final documents can be traced through metadata.

On the positive side, presentation of data and arguments to judges and juries is enhanced by technology and can be much more effective and persuasive.

Have clients’ concerns changed since you started practicing? If so, in what way?

There is more pressure on clients and their counsel to deal expeditiously and transparently with corporate crises and scandals. When the public got its news previously from the printed media, there was more time to reflect and react. We now live in a 24/7 news cycle with multiple sources of information including the internet, cable tv analysts, bloggers and the like. Delaying dealing appropriately both from a substantive and public relations point of view may exacerbate unfavourable perceptions of the issue and the client by regulators, business associates, and the public. And perceptions often tend to become accepted as reality.

What is the most significant trend in the field at the moment?

The scope of what is considered criminal and worthy of investigation and prosecution has dramatically increased. Matters that were once the subject only of private civil disputes or at most administrative action have now been criminalised. In addition, corporations are now being investigated and prosecuted much more frequently. It was not that long ago that corporations were hardly ever the focus of criminal investigations and prosecutions.

And perhaps most significantly business crime enforcement has become global in scope. When the alleged misconduct is not confined to a single nation, multiple regulators and prosecutive authorities will now become involved adding to the complexity and scope of the problem that business crime defence counsel faces. It is now essential to consider the interests and agendas of all these regulators in formulating your strategy and approach.

Compliance is increasingly important in the field at present. What can parties do to minimise their risk?

Having an effective compliance programme in place is critical for corporations. In making decisions whether to criminally charge corporations, prosecutors explicitly consider whether the company has a real compliance programme in place and whether in practice it takes compliance seriously.

What is your proudest achievement to date?

My proudest achievement is that I feel that I have made a difference to the people and institutions that I have been privileged to represent. In many instances, I have been able to preserve the reputation and even the future of those clients. By way of example, I am proud that by persuading the government not to bring criminal charges against the venerable investment banking firms, Kidder Peabody in the Wall Street insider trading inquiry and Salomon Brothers in the treasury auction scandal, both firms were saved along with the jobs and careers of thousands of innocent employees. Had those firms been criminally charged, it is highly likely they would not have survived.

What is the best piece of advice you’ve ever received?

The best advice I have ever received was to become an assistant US attorney under Robert Morgenthau in the US Attorney’s Office for the Southern District of New York. I had been serving as a law clerk to a federal judge and had intended to accept a fellowship to study criminology at Cambridge the following year. I turned down the fellowship and instead joined the US Attorney’s Office. It was a life-changing experience. I learned how to be a trial lawyer and how to present complex fraud cases to a jury. I found that this was something that I liked and suited my talents and aspirations.

WWL Ranking: Global Elite Thought Leader
WWL Ranking: Thought Leader

Global Leader

WWL Ranking: Global Elite Thought Leader
Investigations

Professional Biography

WWL Ranking: Thought Leader

WWL says

Gary Naftalis is hailed by peers as a "pre-eminent practitioner" for his outstanding work in high-stakes corporate investigations.

Biography

Gary P Naftalis is the co-chair of Kramer Levin Naftalis & Frankel LLP, and of the firm's extensive litigation practice. One of the nation's leading trial lawyers and pre-eminent litigators, he was selected as one of the 100 most influential lawyers in America by The National Law Journal and as one of the top 10 lawyers in New York by Super Lawyers (ranked first in 2008, 2012 and 2015-2017). Mr Naftalis is a fellow of the American College of Trial Lawyers. He represents individuals and corporations in all phases of complex “bet the company” civil, criminal and regulatory matters, including those involving allegations of accounting irregularities, insider trading, market manipulation and other financial fraud.

In a career spanning more than 40 years, he has successfully represented numerous securities industry clients, including Salomon Brothers in the investigation of US Treasury auction bidding practices; Kidder, Peabody in the Wall Street insider trading probe; and CIBC in the investigation conducted by the Enron task force. In each instance, he persuaded the government not to bring criminal charges. He also represented the CEO of Arthur Andersen in the Enron inquiry; the chairman of Global Crossing; the COO of MF Global; the CEO of Refco; and major figures in inquiries involving Drexel Burnham, Orange County, Cendant and British Petroleum.

He successfully defended Michael Eisner, CEO of The Walt Disney Company, in the shareholders' derivative lawsuit relating to the hiring and termination of Michael Ovitz. After a 37-day trial in the Delaware Chancery Court, Mr Eisner and the other Disney directors prevailed on all counts. The case was chosen as one of the top defence wins of 2005 by The National Law Journal. Mr Naftalis successfully won dismissal in favour of Kenneth Langone, former chair of the New York Stock Exchange compensation committee, of all charges brought against him by then-attorney general Eliot Spitzer relating to the compensation of NYSE chairman Richard Grasso.

Mr Naftalis won summary judgment for Sirius XM Radio dismissing a breach of contract action by Howard Stern seeking US$330 million in damages. He represented the City of New York in the inquiry by the New York County District Attorney relating to the fire at the Deutsche Bank building at the World Trade Center, in which no charges were brought against the city or any of its agencies or its officials.

Mr Naftalis defended Rajat K Gupta, the former managing director worldwide of McKinsey, in both a high-profile criminal insider trading trial and parallel SEC enforcement action, where he obtained a precedent-setting decision challenging the attempt by the Securities and Exchange Commission to utilise an administrative process rather than go to court.

Mr Naftalis received his AB from Rutgers University; his MA from Brown University; and his LLB from Columbia Law School. He served as deputy chief of the criminal division in the US Attorney's Office for the Southern District of New York. Mr Naftalis has been a member of the faculty at Columbia and Harvard law schools. He is the author of numerous books and articles including The Grand Jury: An Institution on Trial (the leading work on the grand jury system) and Sentencing: Helping Judges Do Their Jobs, both of which he co-authored with Judge Marvin E Frankel.

Litigation 2018

Professional Biography

WWL Ranking: Recommended

WWL says

Gary Naftalis is a distinguished litigator who is described as "one of the greats" in the litigation space. He draws praise for his wide-ranging experience in white-collar investigations.

Biography

Gary P Naftalis is the co-chair of Kramer Levin Naftalis & Frankel LLP, and of the firm's extensive litigation practice. One of the nation's leading trial lawyers and pre-eminent litigators, he was selected as one of the 100 most influential lawyers in America by The National Law Journal and one of the top 10 lawyers in New York (Ranked first in 2008, 2012 and 2015–2017) by Super Lawyers. Mr Naftalis is a fellow of the American College of Trial Lawyers. He represents individuals and corporations in all phases of complex “bet the company” civil, criminal and regulatory matters, including those involving allegations of accounting irregularities, insider trading, market manipulation and other financial fraud.

In a career spanning over 40 years, he has successfully represented numerous securities industry clients, including Salomon Brothers in the investigation of US Treasury auction bidding practices; Kidder, Peabody in the Wall Street insider trading probe; and CIBC in the investigation conducted by the Enron task force. In each instance, he persuaded the government not to bring criminal charges. He also represented the CEO of Arthur Andersen in the Enron inquiry; the chairman of Global Crossing; the COO of MF Global; the CEO of Refco; and major figures in inquiries involving Drexel Burnham, Orange County, Cendant, and British Petroleum.

He successfully defended Michael Eisner, CEO of The Walt Disney Company, in the shareholders' derivative lawsuit relating to the hiring and termination of Michael Ovitz. After a 37-day trial in the Delaware Chancery Court, Mr Eisner and the other Disney directors prevailed on all counts. The case was chosen as one of the top defence wins of 2005 by The National Law Journal. Mr Naftalis successfully won dismissal in favour of Kenneth Langone, former chair of the New York Stock Exchange compensation committee, of all charges brought against him by then-attorney general Eliot Spitzer relating to the compensation of NYSE chairman Richard Grasso.

Mr Naftalis won summary judgment for Sirius XM Radio dismissing a breach of contract action by Howard Stern seeking US$330 million in damages. He represented the City of New York in the inquiry by the New York County District Attorney relating to the fire at the Deutsche Bank building at the World Trade Center, in which no charges were brought against the city or any of its agencies or its officials.

Mr Naftalis defended Rajat K Gupta, the former managing director worldwide of McKinsey, in both a high-profile criminal insider trading trial and parallel SEC enforcement action, where he obtained a precedent-setting decision challenging the attempt by the Securities and Exchange Commission to utilise an administrative process rather than go to court.

Mr Naftalis received his AB from Rutgers University, his MA from Brown University and his LLB from Columbia Law School. He served as deputy chief of the criminal division in the US Attorney's Office for the Southern District of New York. Mr Naftalis has been a member of the faculty at Columbia and Harvard law schools. He is the author/co-author of numerous books and articles including The Grand Jury: An Institution on Trial (the leading work on the grand jury system) and Sentencing: Helping Judges Do Their Jobs, both of which were co-authored with Judge Marvin E Frankel.

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